THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. EUGENIO P. ESCALANTE, DEFENDANT AND APPELLANT.

On the 7th day of November, 1916, the prosecuting attorney of the Province of
Iloilo presented a complaint in the Court of First Instance of said province,
charging the defendant with a violation of section 2662 of the Administrative
Code. The complaint alleged:

“That, during,the month of October of the present year, 1916, within the
district of this municipality of Iloilo, Province of Iloilo, Philippine Islands,
the said accused was cashier of the Iloilo customhouse, duly qualified and
appointed as such; that while, by virtue of his office, collecting, receiving
and depositing funds as customs duties belonging to the Philippine Government,
he did willfully, unlawfully and criminally take and misappropriate and fail
duly to account for and enter in the customhouse books P12,000 collected by him
on October 19, 1916, which sum he appropriated to his own use and for his
personal gain to the prejudice of the Philippine Government until October 24,
1916, and did not pay and turn into the treasury said misappropriated sum until
after he had been required so to do; acts committed with violation of
law.”

Upon said complaint the defendant was duly arrested and arraigned upon the
22d day of November, 1916. Upon arraignment the defendant pleaded guilty to the
crime charged in the complaint. In view of the voluntary confession of guilt
made in open court by the defendant the lower court found him guilty of the
crime charged and sentenced him to be imprisoned for a period of fifteen months
and to pay the costs of the prosecution. He was further sentenced to be
disqualified forever from holding any public office or employment of any nature
whatever within the Philippine Islands. He was further deprived of all accrued
leave.

From the sentence of the lower court the defendant appealed to the Supreme
Court.

The appellant alleges that the lower court committed the following errors:
(1) no preliminary investigation having been previously held, the court a
quo never acquired any jurisdiction over the case and the accused; (2) the
accused not having been ever informed of his right to appear with the aid of
counsel, he was deprived of his constitutional right to have counsel and
consequently the proceedings held were null and void.

With reference to said errors it may be said :

First. That while defendants in criminal actions are entitled of right
(a) to a preliminary examination and (b) to be represented by
an attorney, they are renounceable rights. The right to a preliminary
investigation is a personal right conferred by statute and may be waived.
(People vs. Tarbox, 115 Cal., 57; Korth vs. State, 46 Neb.,
631; Ryan vs. The State, 83 Wis., 486; People vs. Harris, 103
Mich., 473; Benjamin vs. State, 25 Fla., 675; U. S. vs.
Cockrill, 8 Phil. Rep., 742; U. S. vs. Asebuque, 9 Phil. Rep., 241; U.
S. vs. Aquino, 11 Phil. Rep., 244; U. S. vs. Lete, 17 Phil.
Rep., 79.)

If no objection is raised in the court below on the ground that there has
been no preliminary investigation the accused will be deemed to have waived his
right thereto and such objection cannot be raised for the first time upon
appeal. (U. S. vs. Lete, 17 Phil. Rep., 79; State vs. Myers,
54 Kan., 206; Coffield vs. State, 44 Neb., 417.)

It is true that under the provisions of General Orders No. 58 persons accused
of crime are entitled to attorneys for their defense if they have the means, or
if they are without such means to have attorneys de officio appointed
by the court, but that right is a personal one and may be waived also. It is
waived when the defendant voluntarily submits himself to the jurisdiction of the
court and proceeds with the defense. Under such circumstances the prosecution
may go to trial without violating that particular right of the accused. (U. S.
vs. Go-Leng, 21 Phil. Rep., 426; U. S. vs. Labial and Abuso,
27 Phil. Rep., 82; U. S. vs. Custan, 28 Phil. Rep., 19; U. S.
vs. Kilayko, 31 Phil. Rep., 371.)

Second. That when the appellant fails to raise the question of his right to
have an attorney and to have a preliminary examination in the trial court that
question will not be considered when raised for the first time in the Supreme
Court. The failure of the record to disclose affirmatively that the trial judge
advised the accused of his right to have counsel and to have a preliminary
investigation is not sufficient ground to reverse the judgment of conviction and
to send the case back for a new trial. (U. S. vs. Labial and Abuso, 27
Phil. Rep., 82; U. S. vs. Custan, 28 Phil. Rep., 19.) There is nothing
in the record in the present case to show that the defendant raised these
questions in the court below. The doctrine omnia przesumuntur rite te
solemniter esse acta donec probetur in contrarium is specially applicable
against the contention of the appellant. And, moreover, paragraph 31 of section
334 of Act No. 190 provides that the courts will presume that “the law has been
obeyed,” until the contrary is shown.

We find nothing in the record which would justify a modification of the
foregoing rules of law. The defendant was the cashier of the department of
customs in the city of Iloilo. That fact would indicate that he was a man of at
least ordinary intelligence.

It will be remembered that the lower court, in its sentence, deprived the
defendant of his accumulated leave. We assume that the defendant was in the
civil service and was entitled to certain leave privileges. The law under which
the defendant was accused provides for no such punishment. That part of the
sentence, therefore, is null and void.

For the foregoing reasons, we are of the opinion, and so hold, that the
sentence of the lower court should be modified and that the defendant should be
sentenced to be imprisoned in accordance with the provisions of section 2662 of
the Administrative Code, for a period of fifteen months, and be disqualified
forever from holding any public office or employment of any nature whatever
within the Philippine Islands, and to pay the costs. So
ordered.

Arellano, C. J., Carson, Araullo, and Street, JJ.,
concur.

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MALCOLM, J., dissenting:

Two of the basic privileges of the accused in a criminal prosecution are the
right to the assistance of counsel and the right to a preliminary examination.
President McKinley made the first a part of the Organic Law in his Instructions
of the Commission by imposing the inviolable rule that in all criminal
prosecutions the accused “shall enjoy the right * * * to have the assistance of
counsel for his defense.” Judge Cooley says that this is “perhaps the privilege
most important to the person accused of crime.” (Cooley, Constitutional
Limitations, 7th ed., 74.) The Code of Criminal Procedure contains mandatory
provisions reinforcing both rights. True, it is, that the accused may waive
these personal prerogatives. True also is it, that the appellant court can
properly indulge in all reasonable presumptions in favor of the regularity of
the proceedings of the trial court. But this does not mean that without the
slightest indication in the record, the Supreme Court can vitiate these vital
rights of the accused by erecting an edifice of presumptions upon the sands of
an empty record. In the case at bar, there is not a word in the record to
indicate that the accused was informed by the court of his right to counsel, and
that he waived this right; and, that he waived his right to a preliminary
examination. To read these things into the record is to do a grave injustice to
the accused.

The early decision of the Supreme Court of the Philippine Islands in U. S.
vs. Gimeno ([1902] 1 Phil., 236) seems to state the true rule. Since
then, unfortunately, the court, following the dissenting opinion in the Gimeno
case, has finally been led to enunciate the doctrine in U. S. vs.
Labial and Abuso ([1914] 27 Phil. 82) that the failure of the record to disclose
affirmatively that the trial judge advised the accused of his right to have
counsel is not sufficient ground to reverse the judgment of conviction and to
send the case back for a new trial. To such a doctrine, repugnant as it is to
the fundamentals of Philippine organic and statutory law, I cannot give my
assent.

I would suggest that, in this or similar cases in which counsel on appeal
advance these errors, they make use of the best evidence obtainable to
substantiate their claims.